185 A.D. 63 | N.Y. App. Div. | 1918
The learned trial justice accurately charged the jury that the plaintiff, in order to recover, must prove facts showing that the defendant owed to plaintiff a duty with respect to the ladder the breaking of which caused the injury; that as the plaintiff was not in the employ of the defendant and no contractual relation existed between them, that duty must arise, if at all, out of the contract between the defendant and plaintiff’s employer, the H. W. Johns-Manville Company; and if the defendant was obligated by such contract to furnish ladders for the use of the employees of the H. W. JohnsManville Company, it owed to them the duty of using due care that such ladders should be safe for the use to which they were put. The case, therefore, turned primarily on the question whether under the contract between defendant and the H. W. Johns-Manville Company the defendant was bound to furnish ladders to the subcontractor’s employees, as there
Evidence of usage is usually admitted to solve ambiguities in contracts, to render certain that which is uncertain, and to determine the sense in which the parties used the words. (Walls v. Bailey, 49 N. Y. 464.) Proof of usage which is so universal and well known as to amount to a custom may also add to a written contract provisions which cannot be spelled out of the language. (Hutton v. Warren, 1 M. & W. 466.) But to justify a decision that the parties to a written contract intended to obligate themselves to something which cannot be found in the terms of the contract itself, the custom must be shown to be reasonable, uniform, well settled, and either known to the parties when the contract is made, or so generally known, as to raise a presumption that they had it in mind at the time. (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307.) The courts are loath to hold parties to unexpressed obligations unless it clearly appears that the matter was so plainly within their intention that it went, according to a current expression, “ without saying.” (See remarks of Justice Story in Schooner Reeside, 2 Sumn. 567; Hone v. Mutual Safety Insurance Company, 1 Sandf. 137, 138.)
The plaintiff in this case seeks, by proof of usage, to annex to the contract between the defendant and the H. W. JohnsManville Company a provision which cannot be spelled out of the writing itself. I think the evidence is not sufficient. As the work was to be done on the roof of sheds then under construction by the defendant, obviously the plaintiff was entitled to access. The general contractor often has facilities for his own workmen in the way of ladders for use in the necessary work of construction. These facilities may be and undoubtedly often are used by subcontractors. Both the contractor and the subcontractor are working to the same
I think, also, that the judgment must be reversed for errors in the rejection of evidence directly bearing upon the issue. It appears that the H. W. Johns-Manville Company has a form of contract which it uses in cases like this. This form of contract was sent to the defendant and the defendant declined to use it. It contained the following clause: “ You will receive and properly protect from (and accept all liability for) all damage and loss the materials necessary for carrying out this contract and allow us free and reasonable use of such facilities, elevators, etc., as may be available for handling our materials.” The employee of the defendant company who had charge of the subletting of contracts was on the witness stand. He was shown this form of contract and testified that he did not sign it. He was asked why, and plaintiff’s objection on the ground of immateriality was sustained and defendant excepted. He was then asked if the clause above quoted was one of the parts of the proposal that he objected to, and again an objection to the question on the ground of immateriality was sustained and defendant excepted. He was then asked what conversations he had with representatives of the H. W. Johns-Manville Company in regard to the proposal, and again an objection by the plaintiff to the question on the ground that it was incompetent and immaterial was sustained and defendant excepted.
In so far as the questions called for undisclosed reasons or objections in the mind of the witness, the evidence was objectionable; but I think it clearly relevant and material to show that the witness informed the representatives of the H. W. Johns-Manville Company that he would not accept the contract because it bound the defendant to allow free and reasonable use of facilities — elevator, etc.— in handling materials. The plaintiff seeks to sustain the ruling on the ground that the offer of such evidence was an attempt to
In the view which I take of the case, it is not necessary to consider whether the particular ladder used by the plaintiff, which was built for a different purpose and was not fitted for the use to which it was put, was furnished to plaintiff by the defendant.
The case of Quigley v. Thatcher (207 N. Y. 66), which applied the provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18), is obviously no authority for plaintiff, as the cause of action arose in New Jersey, where the provisions of statutes of the State of New York have no force.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., and Thomas, J., concurred; Rich and Kelly, JJ., concurred upon the second ground stated in the opinion, as to the error in the exclusion of evidence.
Judgment and order reversed and new trial granted, costs to abide the event.